I may dismiss & refile Pro Se

[SMinGA]

Background: not eligible for 7, we filed pro se chapter 7 in 2005. Was a very simple case, no assets. Discharged & closed 3 1/2 months after filing.

Filed ch. 13 in Dec. w/ an attorney. Eligible for 36 months based on income but doing 60 as can't afford enough to do a 60. 13 includes mortgage arrears & vehicle loan. (Vehicle must be paid off in the 13.) Also attorney fee & a small amount to unsecured, the way the #s worked out.

Why we're considering a dismissal: need to replace or rebuild the transmission in our 2nd vehicle (which is being paid off thru the 13). Giving it up really isn't an option. Have the money from our 09 tax refund-which the trustee wants. If we give it to the trustee in the 13 then there is no way to fix the vehicle. If we dismiss, we can fix the vehicle (spend the money). Future refunds would go to the trustee, and I'm ok with that. Refund is from tax credits, not overwithholding. Would have to pay filing fees - seems like paying a few hundred would be worth saving a few thousand.

Were originally due for confirmation last week - the attorney didn't file some necessary amendments til the day of so it got reset. They were minor things-one due to his error. He originally included a small 401k deduction for hubby in our schedules even though that stopped last fall. So our plan payment was amended to go up $25. And we bought a freezer a couple of years ago on a Best Buy card - they filed a claim as a secured creditor and so our attorney amended to show intentions to surrender it. (They want to play hard ball, they can come & get it...) Overall, I believe ours once again is a simple case. We don't live extravagantly - expenses are all reasonable & under IRS guidelines.

Last - I have found out its possible to defer student loans during a 13 - adding that amount to what we were planning to pay in the 13 would allow us to do 36 instead of 60 months.

If we refile pro se, would we submit check stubs (6 months prior to filing), tax returns, etc. directly to the trustee? And I understand that some dismissals involve a 6 month bar on refiling. Under what circumstances does that happen - and when does it not?

[HHM]

I don't like this plan, not sure what you really gain. When there is a potential hardship (i.e. transmission issue), that can usually be negotiated with the BK trustee. If fixing the transmission is necessary for the benefit of the estate, i.e. allow you work to fund the plan, the trustee (or court) will probably allow you to use the tax refund for that purpose. EVERYTHING can be negotiated in a chapter 13.

I don't think you need to dismiss.

[SMinGA]

Good to know HHM. Have sent this same info to our attorney to see what he says. Dismissing/refiling would not be my first choice - and I believe amending the payment up to cut the months to 36 can be done either way.

[justbroke]

I'm wondering why you would dismiss as well. Not to mention that you'll have a dismissal with prejudice, that will equal a 180-day bar from you filing another bankruptcy. If you have real property or other creditors chomping at the bit, then you could put yourself in a worse situation.

You can ALWAYS ask the Trustee for permission to use all or part of an income tax refund for things such as... fixing your car, repairing yoru roof, getting medical treatment. You only need ask.

[tigergem]

Just curious, justbroke. When you ask the trustee permission for something like that, does every request have to go through the court in the form of a motion?

[kornellred]

Interesting question, tigergem. My trustee does not require me to send in tax refunds, and I have always wondered why some trustees do. The trustee is actually a neutral third party who administers the confirmed plan, from which no deviation is permitted unless it is approved by the Court. There is no question that if surrender of tax refunds is ordered in writing in the plan confirmation document, the trustee would have to motion the Court in order to free the debtor from the responsibility of doing so.

[tigergem]

Ah ok. That makes sense, kornellred. If a condition is written into the plan, then yeah, I can see that it would require a motion to deviate.

[justbroke]

Just curious, justbroke. When you ask the trustee permission for something like that, does every request have to go through the court in the form of a motion?

Having payments suspended do not need to go through the Court... it can be worked out with the Trustee.

[tigergem]

Having payments suspended do not need to go through the Court... it can be worked out with the Trustee.

Why does that sound easier than it probably actually is?

[justbroke]

Why does that sound easier than it probably actually is?

Actually, it is. Of all the things in the process, the Chapter 13 Trustee actually wants you to stay on plan. Why? Because they make no money if they throw everyone out of Chapter 13. So, as long as you're paying, they really don't bother you at all!!! They seem very very accommodating when you run into issues.

I was told so by the Trustee herself that they are there to make your plan work.

[SMinGA]

Short update: Got a response from my attorney - to do what we have to do - on the transmission. Found an Aamco location I am happy with, and they say it will be in the $1400-2200 range. I like it that they are willing to give me an upper limit without having yet worked on the vehicle. Will schedule a tow to pick it up later today.

Attorney is still working on getting the ok for us to NOT pay the refund to the trustee...

[tigergem]

Wow, that sounds high. I just had a rebuilt trans put in my truck for $850 last November. But not at Aamco.

[SMinGA]

I called around a few places - only able to get generic quotes of course. Its a 2004 2wd Avalanche. Most were saying ~$2500 rebuilt/used or $4000-5000 new. Can't even consider 'new'. Another Aamco that I talked to said $800 down to get started on it - which would be applied to the repair work - and $2500-3500 total. The $1400-2200 Aamco (I guess they're independently owned & operated) was recommended by the place we get brake work and such. They don't rebuild...

[tigergem]

Wow. Too bad you don't live closer, I'd give you the number for the guy I used. He has 2 prices. $750 and $850. lol. Folks around here swear by him, and Aamco in town got to be so much of a laughing stock that they changed their name to USA Transmissions. As if nobody would notice that it was the same place and the same phone number, doh!